Week 4 Public: Foundations of Public Law

What is public law?

Public law regulates the system of government, the powers and relationships of public institutions, and the relationship between individuals and the state. It holds the government accountable and protects legal/human rights. - Elliot & Thomas, Ch1 , p.3

What are the key constitutional principles in the UK?

Parliamentary sovereignty, the rule of law, separation of powers. - Elliot & Thomas, Ch 1, PP 4-5.

define constitutional law

if is concerned with the overall constitutional structure by which a country is governed - Elliot & Thomas, Ch 1, p.3.

define administrative law

the law controlling governmental power (excluding Parliament) to ensure legal limits to protect citizens. “The primary purpose of administrative law…is to keep the powers of government within their legal bounds…” Wade & Forsyth, Administrative Law, 11th ed. p.4

Does the UK have a codified constitution?

No. The UK has an uncodified constitution—rules exist but aren't in a single written document.

What are the consequences of the UK’s uncodified constitution?

Parliamentary sovereignty, no formal amendment process, and high flexibility.

Arguments against codifying the UK constitution?

Flexibility, functional history, and fear of power shifting from Parliament to courts.

Arguments for codification of the UK constitution?

Limits on Parliament, clarity, stronger rights protection, and democratic legitimacy.

What did Elliott & Thomas note about UK lawmakers and fundamental rights?

Lawmakers can pass laws conflicting with fundamental rights but usually don't due to morality or electoral consequences. “is this acceptable?” - Elliot & Thomas,2020,pp 27-28

What are the main sources of the UK Constitution?

1) Acts of Parliament, 2) Common Law, 3) Constitutional Conventions, 4) International Treaties

What did the court say in Miller 2/Cherry about the UK constitution?

Despite no single document, the UK has a constitution from common law, statutes, conventions, and practice. “it has developed pragmatically…’ Miller 2/Cherry, para 39

What are examples of constitutional statutes?

Parliament Acts 1911 & 1949, Human Rights Act 1998, Constitutional Reform Act 2005, Scotland Act 1998.

Are all Acts of Parliament equal?

While legally equal, some Acts (e.g., Human Rights Act) are constitutionally more significant.

What is the role of common law in the constitution?

Judge-made law developed through precedent; cannot contradict statute due to Parliamentary sovereignty. “It is not open to judges…to apply the common law in a way inconsistent with statute.” - Miller 1, para 42-43

What are constitutional conventions?

Non-legal, politically binding rules developed by practice (e.g., PM must command Commons' confidence). “[R]ules of constitutional practice…not in law.” - Cabinet Manual, p.3

Example of a constitutional convention?

The monarch appoints as PM the leader of the majority party in the Commons. - Elliott & Thomas 2020, p.63

What is the royal prerogative?

Residual powers formerly held by the monarch, now exercised by ministers (e.g., war, treaties). “An historical anachronism…” Elliot & Thomas, 2020, p.62

Can prerogative powers be changed?

Yes. They can be abolished or restricted by Parliament. New ones cannot be created. - Le Sueur et al, p. 303

What case confirmed prorogation is a prerogative power?

Miller 2/Cherry, para 30

Is the UK a monist or dualist state?

Dualist—treaties must be incorporated by statute to be enforceable in UK courts.

Example of treaty incorporation in UK law?

The Human Rights Act 1998 incorporates the ECHR.

What is political constitutionalism?

Emphasizes Parliament’s role in controlling government; judges defer to elected representatives.

What is legal (common law) constitutionalism?

Emphasizes the courts and fundamental rights; supports judicial checks on government.

What is the central debate in UK constitutionalism?

Whether accountability should primarily be political (Parliament) or legal (courts).